Citation Nr: 0824552
Decision Date: 07/22/08 Archive Date: 07/30/08
DOCKET NO. 95-02 346 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to a separate disability rating for service-
connected residuals of a post-operative left knee injury,
based on instability, from December 2, 2004.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Jason R. Davitian, Counsel
INTRODUCTION
The veteran served on active duty from August 1972 to July
1993.
This case is before the Board of Veterans' Appeals (BVA or
Board) on appeal from a March 1994 rating decision of the
Department of Veterans Affairs (VA) Regional Office in Little
Rock, Arkansas (RO), which granted service connection for
post-operative residuals of a left knee injury. The
evaluation was 10 percent, effective from August 1993.
During the appeal period, the evaluation was increased to 20
percent, effective from August 1993.
In a September 2006 decision, the Board, inter alia, denied
an evaluation in excess of 20 percent, for the period from
August 1, 1993; granted a 100 percent evaluation for the
period from December 1, 2003 to December 1, 2004, and
assigned a 30 percent evaluation, effective from December 2,
2004.
The veteran appealed the Board's decision to the Court of
Appeals for Veterans Claims (Court). In a March 2008 order,
the Court noted that the parties had filed a joint motion to
remand the appeal to the Board. The Court remanded that part
of the Board's decision that assigned the veteran's left knee
disability a 30 percent evaluation, effective from December
2, 2004, but failed to consider entitlement to a separate
rating for instability. The appeal as to all remaining
issues was dismissed.
The Board observes that the appellant's brief to the Court
identified an issue of whether the Board erred in failing to
assign the veteran's left knee disability a separate 10
percent evaluation under 38 C.F.R. § 4.1a, Diagnostic Codes
5003-5260, effective from March 7, 2000. A June 2008
informal brief submitted on the veteran's behalf also lists
this issue. However, as the March 2008 joint motion and the
Court Order do not address this issue, and indeed the Court
dismissed the appeal as to all remaining issues, the Board
finds that it is not before the Board at this time.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
A preliminary review of the record and the parties' March
2008 joint motion indicates that this claim requires
additional development.
The most recent VA examination was conducted in August 2004.
The Court has held that when a veteran claims that a
disability is worse than when originally rated, and the
available evidence is too old to adequately evaluate the
current state of the condition, VA must provide a new
examination. See Olsen v. Principi, 3 Vet. App. 480, 482
(1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632
(1992).
In addition, a VA examination to determine the veteran's
current symptoms is necessary because staged ratings are
appropriate in an increased-rating claim in which distinct
time periods with different ratable symptoms can be
identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The
Veterans Claims Assistance Act of 2000 (VCAA) requires VA to
provide a medical examination when it is necessary to make a
decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002);
38 C.F.R. § 3.159 (2007).
The Board also observes that after a review of the claims
file, it is unclear when the veteran's 100 percent evaluation
ended. The September 2006 Board decision awarded the 100
percent evaluation from December 1, 2003 to December 1, 2004.
The October 2006 rating decision that implemented the Board
decision provides that the 100 percent evaluation was in
effect until January 31, 2005. The October 2006 rating
decision also reflects an award of 10 percent for left knee
degenerative joint disease, associated with post-operative
left knee injury, effective March 2000. Clarification of the
actual compensation awarded to the veteran for his left knee
disability is required for the proper adjudication of this
claim.
Accordingly, the case is REMANDED for the following action:
1. Schedule the veteran for an
examination by an appropriate VA examiner
to determine the nature and current level
of severity of the veteran's service-
connected post-operative left knee
injury. The claims file must be made
available to the examiner. A complete
rationale for all opinions expressed must
be provided. If the examiner finds it
impossible to provide an opinion without
resort to pure speculation, the examiner
should so indicate.
2. Then, readjudicate the issue of
entitlement to a separate disability
rating for service-connected residuals
of a post-operative left knee injury,
based on instability, from December 2,
2004. In doing so, address the
inconsistencies identified above and
explain all awards of compensation, and
their effective dates, awarded to the
veteran for his service connected left
knee disability. If the decision is
adverse to the veteran, he and his
representative should be provided an
SSOC. The SSOC must contain notice of
all relevant actions taken on the claim
for benefits, to include a summary of
the evidence and applicable law and
regulations considered pertinent to the
issues currently on appeal. An
appropriate period of time should be
allowed for response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).